Blogging WIPO: What's Next for the Webcasting and Broadcasting Treaties?

Blogging WIPO: What's Next for the Webcasting and Broadcasting Treaties?

As we reported last Friday, the public interest won a big victory at WIPO's latest meeting on the Broadcasting Treaty. The contentious provisions creating unjustified rights for webcasters and simulcasters will be removed from the treaty. While this is good news, the battle isn't over yet. The remainder of the treaty draft covering "traditional" broadcasters and cablecasters still poses significant problems, and the webcasting and simulcasing proposals are still in play, as a separate draft treaty moving through a slower process. Drafts of the revised broadcasting/ cablecasting and new webcasting/ simulcasting treaties are due by August 1.

Why are the webcasting and simulcasting provisions so worrisome? The treaty would have created new 50 year intellectual property rights over Internet transmissions -- backed by technology mandate laws -- that would stifle technological innovation, impede the free flow of information on the Internet, and create new liability for Internet intermediaries. This might endanger new and existing devices such as TiVos for online radio and Slingboxes, and transferring recorded television to your Video iPod. In addition, creating this new layer of rights above copyright would allow transmitters to restrict re-use of transmitted public domain works or music you created and Creative Commons-licensed.

The same concerns could still arise in the new webcasting and simulcasting treaty, but that won't necessarily be the case. Unlike the current broadcasting treaty draft's expansive intellectual property rights framework, a future treaty could focus on a more limited theft of signal or services approach. That would not require rights to control "fixation" for any length of time, nor rights over post-fixation uses, or technological protection measures. Last week many member states -- including the U.S. -- expressed support for a treaty more focused on signal theft. The U.S. delegation is tasked with producing a signal theft approach proposal before September.

However, it's still possible that webcasting and simulcasting could come back into the "traditional" broadcasting treaty. The U.S. and E.U. delegations stated that if the WIPO General Assembly does not vote in September to hold a 2007 Diplomatic Conference on "traditional" broadcasting and cablecasting, they want webcasting and simulcasting to be part of the package in future talks. That would be a big step backwards. Webcasters and simulcasters could then be given full intellectual property-based rights over Internet transmissions. A lot is now riding on the September General Assembly.

Even if webcasting and simulcasting are out, the remaining "traditional" broadcasting and cablecasting treaty is still bad news. It will be detrimental for technology innovation. It includes broadcaster technological protection measures that will require technology mandate laws like the U.S. FCC Broadcast Flag regulation over televisions, radios and possibly even personal computers. The treaty could create the global legal framework for tech mandate laws that rival the proposed U.S. broadcast and digital radio flag mandates. As EFF, Intel Corp. and many others have noted, the combination of DRM mandates with novel rights raises serious threats to innovative entertainment technologies.

The remaining treaty also raises significant concerns for access to material in the public domain. As demonstrated by the recent deal between the Smithsonian Museum and Showtime, granting transmitters a new layer of rights that apply over and above copyright, and are enforced by legally-sanctioned technological measures, is likely to restrict the public's ability to access public knowledge.

These issues deserve consideration now, not as an afterthought once the "traditional" broadcasting treaty is almost a fait accompli in September.

To get the full story, read the NGO Coalition's notes of last week's meeting after the jump.

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